The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thanks once again to Eugene for the opportunity to share this research from "Article II Vests the Executive Power, Not the Royal Prerogative." I'd like to close with some thoughts on the larger project and its implications.
This first article lays the foundation. A full account of the Founders' presidency will require extensive engagement with the debates and political practice of late eighteenth-century America—all of which is coming in future work. But the evidence on Madison's bookshelf is so overwhelming that it would take something seriously compelling to dislodge the presumption it creates. Absent such evidence, the Executive Power Clause would have to be understood as vesting the wholly derivative authority to execute the laws, and nothing else.
If that's right, what does it tell us about the presidency that resulted? Some have rejected the law execution interpretation of the Executive Power Clause because they think it renders the President a limp dishrag. Certainly Chief Justice Vinson's Youngstown dissent rejected the historical interpretation on the ground that it would render the President an "impotent" "automaton" or "messenger-boy." And the arch-royalist Filmer echoes loudly in Harvey Mansfield's suggestion that "if any real president confined himself to this definition, he would be contemptuously called an 'errand boy'…a mere agent whose duty is to command actions according to the law."
These objections to "mere" execution fail to appreciate the importance of the clause. Certainly they underrate the power of law execution today, when the statutory framework entrusts the President with a staggering array of discretionary policy power. But more relevantly for the historical question, they underrate the clause's centrality in the eighteenth century as well. In fact, the problem targeted by the Executive Power Clause might have been the most important motivation for drafting the Constitution in the first place. Future work will explore the point in detail, but the bottom line is that the Founders were desperate for a more effective force to implement national projects and prohibitions.
Their anxieties on this score reflected one of the oldest problems of governance design. The treatise known as Bracton taught centuries of English lawyers that "it is of no use to make laws, unless there is some one to maintain them." The great jurist Coke intoned that "the life and strength of the Laws, consisteth in the execution of them: For in vaine are just lawes Inacted, if not justly executed." Writers competed to make the point most vividly, with analogies ranging from military force ("a sword made of Parchment and Paper in his Laws") to the human body ("the will which determines the act" and "the strength which executes it") to astrology (bodies in the "solar system" of governance "are attended with satellites of executive power") to musical instruments ("Lawes without execution, be no more profitable, then belles without clappers").
The Founders couldn't have agreed more, not least because of what they learned from the slow motion catastrophe known as the Articles of Confederation. You don't have to dig any deeper than the records of the Constitutional Convention to find Gouverneur Morris saying that "the efficacy & utility of the Union" would "depend" on "the due formation" of "the establishment of the executive." The Article II solution to the execution problem was no afterthought. In some ways, it was the crux of the whole settlement.
So don't be too quick to think the law execution theory minimizes presidential authority. The executive power has never been anything less than the nation's force mustered in service of the nation's will. Once it was vested in a single magistrate, and once that magistrate was given a veto to influence the content of his legislative instructions, the result was a massively powerful institution. Just not one with a free-floating foreign affairs power, or indeed any other authority not specifically listed elsewhere in the constitutional text.
[For all the posts in this series, click here.]